The following “prison story” is based on numerous female inmates who bravely told their accounts of the abuse they faced at the hands of prison staff. The details of our story are balanced against staggering statistics haunting the unfortunate reality for female inmates. To even begin to remedy this issue, it is imperative we understand the cards placed in front of the population of incarcerated females. To bring justice, we must know a prisoner’s rights and how to make a case.
This story and article contain a trigger warning.
A prison story
Meet Sarah, a female prisoner
Sarah is living in poverty and has endured a lifetime of abuse. While trying to escape the cycle, she thought she married a man who would protect her from future trauma. After a few months and a child-on-the-way, he began to beat her, choking her and often sending her to the hospital.
Sarah reported her husband to the police. He threatened if she did it again, he would kill her and their child. One day, while he was slamming her head against the kitchen floor, Sarah grabbed the closest thing to her. She flailed her arms behind her back in an attempt to hit him so he’d let her go. He did. Turning back, she saw blood pouring from him.
Abuse in prison
Despite the years of reporting him, hospital records from her injuries caused by him, and the fact she was acting in self-defense, Sarah was still sentenced to 15 years in prison and convicted as a felon. The men she knew who had killed their partners were sentenced to less than ⅓ of that time. Her heart dropped as her child was taken into foster care and she was sent to jail.
In prison, she was given a welcome basket of violence, abuse, and rape. There was no way she could report the abuse. Other inmates had already lost visitation rights, received harsher treatment, were placed in solitary confinement, or transferred for reporting. The foster family brought her daughter to visit. If she were to be transferred to another center, it would risk that visit.
How a parent’s jailtime affects her child
After about a year and a half, a petition had been submitted for Sarah to lose her parental rights because her daughter had now lived in foster care for 15 of the most recent 22 months. As she tried to fight this, she realized the Adoption and Safe Families Act (ASFA) did not make an exception for women who were incarcerated. Not long after, proceedings to relinquish her rights to her daughter began.
Years later, her daughter visited and appeared high. She recounted how she was having trouble in school and considered dropping out. Growing up with her mom in jail, jumping around in the foster care system, suffering from her own abuse while in foster care and dealing with PTSD from the violence she witnessed as a child, she was crashing. She told her mom it was likely she was going to be sentenced to juvenile detention because she was caught using drugs, as it was the only thing that stopped the pain.
Mental health help while incarcerated
Suffering sexual abuse from the staff while simultaneously attempting to come to terms with her past caused Sarah to fall into a deep depression. She requested an evaluation and mental health help but was told she did not qualify. A year later, she attempted suicide and failed. The guards moved her to a suicide watch floor after a few weeks in solitary confinement.
Sarah never received adequate mental health help and continued to endure abuse through her sentence. Finally, the day came when she was able to walk from the prison and looked at starting her life over.
Life after prison
Out of prison, she applied for public housing but was denied due to her criminal record. Now homeless, she looked to find a job but the lack of sanitary measures and transportation proved difficult. Sitting with a sign in her lap asking for change, someone passed her drugs. For the first time in years, she let go. The only way she could make any money was with her body, and so she used it and numbed the sickening feeling at night with drugs.
At one point Sarah pursued pressing charges against the prison for the abuse. A lawyer told her she had exceeded the statute of limitations and did not follow the grievance procedure. There was nothing he could do.
About a year later, Sarah awoke surrounded by men in uniforms. She had overdosed and was given Narcan. Sitting in front of a judge, she listened as he recalled her list of offenses: drugs, prostitution, theft, and manslaughter. She was a convicted felon and he saw no good to let her remain on the streets. She was sentenced and sent back to prison. This time on drug charges.
Sarah’s story is fiction but based on the facts women in prison face. The statistics below are staggering. What is more shocking is if procedures are not followed, a woman who is abused in prison may lose her ability to speak out.
The stats of female prisoners
Let’s break down Sarah’s story. She is the primary caregiver. Per the Women in Prison Project’s Fact Sheet, over 64% of women lived with and cared for their children prior to going to prison. The US Department of Justice released a report in 2006 that stated up to 79% of women in jail are mothers and according to a 2009 article from the National Conference of State Legislatures, up to 77% of these women are the primary caregivers.
Sarah is living in poverty. Prisonpolicy.org recapped a 2004 report from BJS showing the median annual income for women aged 27-42 prior to being incarcerated was $13,890. That is about $10,000 less than a non-incarcerated woman. Poverty remains one of the higher factors of women becoming incarcerated.
Inmate’s history of abuse
In her past and present relationships, Sarah lived at the hands of an abuser. Her daughter states she has suffered abuse in foster care. Most incarcerated women and juveniles have a history of abuse.
Sarah, herself, fits the vast majority of women who are incarcerated. American Civil Liberties Union (ACLU) released the staggering facts showing 79% of women who are incarcerated report prior abuse and 60% report prior sexual abuse. According to U.S. Bureau of Justice Statistics, women prisoners are 3 times more likely than their male counterparts to have been sexually or physically abused in the past. A 2012 study by Lynch, Fritch, and Heath revealed 90% of incarcerated women experienced sexual or physical abuse in the year prior.
Effects on juveniles – how abuse and incarceration hurts kids
Focusing for a second on Sarah’s daughter, sexual abuse is one of the top predictors of girls eventually going into the juvenile justice system. While national studies are lacking, states have produced their own studies to help highlight this issue. For example, a 2006 study conducted on girls involved in Oregon’s juvenile justice system showed results of 93% of girls experiencing either sexual or physical abuse in their past. 63% had experienced both types. Rights4Girls.org found girls are 4 times more likely than boys to be abused. While many good-intentioned families provide a home for children in foster care, there are plenty that should never be given a child.
Due to the passage of the federal Adoption and Safe Families Act in 1997, states must file to terminate parental rights of children who are in foster care for 15 of the most recent 22 months. Activists have fought against this act and successfully created flexibility for parents who are incarcerated. For example, New York passed the ASFA Expanded Discretion Bill which allows foster agencies to postpone filing for termination when the sole reason is based upon a parent being incarcerated.
Violent crimes versus non-violent crimes and females
In her story, Sarah killed her abuser. ACLU reports 90% of women in jail for killing men are there for killing those very men that abused them. When they do snap, the punishment is much longer for a woman versus a man. ACLU further cited women are averaged to receive 15 years, despite the fact their action was in self-defense. Men usually receive between 2-6 years.
Most women, however, are incarcerated for non-violent crimes such as drug abuse or prostitution. In 2016, Vera Institute of Justice found that, in fact, 82% of women were in jail for non-violent crimes. 32% were in jail for property offenses, 29% drug offenses and 21% public order offenses.
While in prison, Sarah was re-victimized by abuse at the hands of guards, nurses, etc. Reporting abuse can cause undesirable consequences for inmates – solitary confinement, transfers, relinquished visitation rights, retaliation, mail being thrown out, denial of healthcare or sanitary conditions and other undesirable punishments. Many inmates report sexual violence and abuse of power is commonplace.
Mental health and women inmates
Because the women are afraid to speak up for fear of retribution, they often stay silent and endure. It is no surprise this abuse can trigger new or existing mental health conditions. Incarcerated women are often mothers, victims of abuse or drug addicts which makes them more likely to have depression or another mental illness. Further, studies show when someone has come from a lifestyle of abuse or trauma, as most the women have, the brain actually changes in its development.
According to a 2013 Time Magazine article which recapped an entry in American Journal of Psychiatry, brain scans revealed women who have experienced emotional abuse had a thinning in the prefrontal cortex and medial temporal lobe, or in other words, the part of the brain regulating your self-awareness. This part allows you to think through your emotions and have an appropriate response. When it is thinned, the women are left prone to depression, moodiness, and extreme/dulled responses. Basically, they cannot reflect and find the appropriate way to deal with a situation.
There is a silver lining here. If the right type of support is given, the brain is capable of change. That is where Sarah was failed. When she reached out about being depressed, she was not given adequate support.
A 2006 Bureau of Justice Statistics Special Report estimated only about ⅓ of state prisoners and ⅙ of jail inmates receive the mental health treatment they need while incarcerated. Many inmates are afraid to report mental health issues, as a common response is solitary confinement which only adds to the issue. Further, mentally ill prisoners are more likely to be abused by other inmates and correctional staff.
Public housing options post-prison
When Sarah left, broken and without a soul to turn to, she tried to first find housing. Knowing public housing was an option for others, she attempted to find shelter but was told that because of her record, she was not eligible. Federal law gives public housing authorities the ability to hold policies excluding individuals with criminal records to be eligible for housing and must reject anyone who is thought to be a drug user or have a record of alcohol abuse.
In fact, according to a report released by the ACLU, 3 states ban applicants based on criminal records, 47 states can make individual assessments based on criminal records and rehabilitation efforts, and 27 housing authorities base their eligibility on arrests that never even led to a conviction. Women are the fastest-growing segment of incarcerated individuals with 8 times more women incarcerated than in 1980, making a bleak outlook when leaving prison and attempting to get housing.
Government assistance for felons
In the end, Sarah ends up homeless prior to re-entering the system. 40% of mothers report being homeless prior to entering. A 1996 federal welfare law states that if a person has a drug-related felony, they can be prevented from receiving welfare. When Sarah tries to get help with food after her second round in prison, she will no longer be eligible for food stamps or housing.
Damaging her chances of turn-around even more, she will likely not be eligible for any help with education, nor will her daughter. When convicted of a drug-related offense, students lose the ability for any educational grant, loan or work assistance and states cannot lift the ban. 40% of women on probation and 44% of women in state prisons have not graduated or received a GED, as cited by a 2003 BJS report.
Dumb luck placed her with an abusive family at birth. Her brain development altered and her choices reflected this. She ended up with an abusive husband and acted in self-defense, landing her incarcerated and re-victimized with abusive guards/staff. In her 15 year sentence, she deteriorated and upon release, had no options. Could anything have changed?
Know your rights as a prisoner
A common misconception is when a person is shackled and taken away, she waives all of her rights. Prisoners have rights. To prevent or receive treatment while incarcerated, it is imperative prisoners understand their basic rights. This allows them to know when they have been violated.
Note: this list is not intended to be a complete list of the rights of inmates.
The right to humane facilities and conditions
While waiting for trial, a person cannot be punished or treated as if they were guilty. Once they become inmates, the Eighth Amendment of “free from cruel and unusual punishment” still applies. Basically, inhumane treatment or living conditions is a violation.
Prison officials legally must refrain from using excessive force or maliciously using force with intent to cause harm. If the guards know of prison conditions or practices that create risk, refuse to protect prisoners from others, or are aware the prison conditions create a risk of assault, they may be violating the Eighth Amendment.
The right to be free from sexual crimes
An inmate cannot be subjected to sexual harassment or sexual crimes. In 2003, the Prison Rape Elimination Act (PREA) was passed to protect individuals from prison rape in Federal, State and local prisons, jails, police lockups, private facilities, and community settings such as residential facilities. The Bureau of Justice Assistance and the National Institute of Corrections supported funding for major efforts for analysis and protections in state correctional, juvenile detention, community corrections, and jail systems.
Within PREA, the National Prison Rape Elimination Commission was created with the goal of developing standards to eliminate prison rape altogether. The standards were published in 2009 and passed in 2012. Further, the National PREA Resource Center was funded in 2010 with a goal to provide federally funded training and technical assistance to states and localities, as well as resources for tools needed to come into compliance with the federal standards.
The right to medical care and attention
Both short-term and long-term illnesses require adequate medical care and remain a right while incarcerated. As a female, pregnancy in prison can be of concern. If pregnant, dependent on state laws, an inmate has the right to an abortion if she wants one and to refuse if she does not.
Prenatal care and postpartum medical care should be provided. Prisoners do not need to pay nor be forced to pay before medical care is given. Many state laws prevent inmates from being shackled while pregnant, during labor or recently after. Finally, inmates have the right to refuse sterilization or unwanted birth control proceeding their pregnancy.
The right to mental health care
Just like medical care must be adequate, mental health care must be given in an appropriate manner.
The right to a hearing
If an inmate is moved to a mental health facility, she is entitled to a hearing. However, if she is being moved between two similar facilities, she may not be entitled to one. A mentally ill inmate is not entitled to a full hearing before the government may force antipsychotic drugs against/her will. In this case, the hearing may be conducted before medical professionals.
The right to be free from racial segregation
Racial segregation is not allowed in prisons. At times, it may be applied for discipline and security.
The right to express complaints
Inmates have a right to complain about the conditions they face, as well as air those complaints in court.
The right to assert ADA rights
Americans with Disabilities Act allows disabled prisoners to access prison programs or facilities for which they qualify and are able to participate.
Know your limits as an inmate
The First Amendment remains somewhat in place for prisoners. When evaluating which parts of the First Amendment still apply, the concepts cannot be inconsistent with the objectives of the prison such as order, discipline or security or the status of an individual as an inmate.
Personal property cannot intentionally be withheld from inmates. Guards are allowed to open mail to ensure there are no illegal or harmful items. The mail should be given to the inmate without censorship of rude or inflammatory parts.
The prisoner’s cell is not a private room and therefore, there is no reasonable expectation of privacy in the cell. Shakedowns and cell searches to look for weapons, drugs and other items are not prohibited.
Prison Litigation Reform Act (PLRA)
With the passage of the PLRA in 1996, it is much more difficult to file a lawsuit in a federal court. It is important to understand the parts of the PLRA to ensure the correct steps are followed.
Prior to filing suit in a federal court, a prisons’ internal grievance procedures must be initially exhausted. This procedure typically starts with a written formal complaint. The specific prison determines the subsequent steps to the grievance procedure. A case is likely to be dismissed if these steps are not followed.
A prisoner needs to reach the exhaustion point on the internal grievance system before filing a lawsuit. The ACLU provides a deeper dive into defining exhaustion.
Court filing fees
Per the PLRA, prisoners must pay their own court filing fees in one lump payment or make monthly installments if payment in full is unable to be met. An initial fee of 20% of the greater of the prisoner’s average balance or the average deposits to the account for the preceding six months. For subsequent payments, the prisoner pays 20% of the income credited to the account in the previous month until the fee is paid off.
If a prisoner is filing a claim for mental or emotional injury in which she wishes to receive compensation for the injury, she must show she has suffered a physical injury, also. If the judge rules the prisoner has filed the lawsuit for harassment or is lying in the lawsuit, the prisoner could lose credit for good time.
Finally, courts can dismiss the lawsuit if they feel the claim is improper, frivolous or malicious. Prisoners can only have this happen three times, referred to as “three strikes.” After the third strike, in order to file, the entire court fee must be paid upfront. If the prisoner is in danger of serious and immediate injury, an exception can be made to this rule.
A prisoner is defined as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program” in many of the above provisions. Found within a part of the section on injunctive relief and settlements, the PLRA defines prison as “any Federal, State, or local facility that incarcerates or details juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law” but yet does not make any differentiation between public or private. In fact, in 2007 the U.S. Ninth Circuit of Appeals dismissed a case in Montana confirming the exhaustion procedures of the PLRA did, in fact, apply to private prisons.
Many states have their own PLRA’s that prisoners must take into consideration. The Jailhouse Lawyer’s Manual breaks down the PLRA into detailed parts; however for specific information on your individual state’s PLRA, contact The Hayes Firm.
What to do if your rights were violated
Documentation is important. Make requests for medical care in writing and keep a copy for yourself. Write down the names, times and dates of everyone you have spoken with and what information they have given you.
File a grievance if you are not receiving appropriate medical care. You have the right to file an appeal if your grievance is denied. If you are unsure of the process, refer to your inmate handbook.
There are often strict timeframes for filing a grievance. In the case of assault, file a grievance right away and appeal it through all the levels possible. If you feel you are in danger, tell staff you trust and document who you have spoken with.
Find legal representation
Were your rights violated? Contact a civil rights attorney or legal representation right away. You can also contact NARAL, Planned Parenthood, ACLU affiliates or the National Prison Project of ACLU.
Here at the Hayes Firm, we pride ourselves in finding the right attorney for your case. Contact us today so we can help you get the representation you need.